Citation Nr: 0215790
Decision Date: 11/06/02 Archive Date: 11/14/02
DOCKET NO. 98-11 354 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to a rating in excess of 10 percent for status
post thyroidectomy due to papillary thyroid carcinoma with
anxiety disorder with depressive features.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Daniel R. McGarry, Counsel
INTRODUCTION
The veteran had active duty service from July 1977 to June
1992.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from an August 1997 rating decision in
which the regional office (RO) continued a 10 percent rating
for status post thyroidectomy due to papillary thyroid
carcinoma with anxiety disorder with depressive features.
FINDINGS OF FACT
1. All relevant and obtainable evidence necessary for a fair
and informed decision concerning the veteran's claims now on
appeal has been obtained by VA.
2. The veteran has been notified of the evidence that is
necessary to substantiate his claims, has not submitted
additional evidence, and has not identified any additional
evidence to support his claims.
3. The veteran has service-connected disability from status
post thyroidectomy due to papillary thyroid carcinoma with
symptoms of anxiety disorder with depressive features, the
rating for which disability was 100 percent from June 18,
1992 to February 28, 1997, and 10 percent from March 1, 1997
to the present.
4. Due to thyroid carcinoma and metastases thereof, the
veteran underwent a left thyroid lobectomy in December 1993,
a right hemithyroidectomy in February 1996, treatment with
radioactive iodine in April 1996 and again after October
1996, and, finally, radionuclide ablation of the thyroid
gland in October 1997.
5. A whole body scan on May 1, 1998 was normal and showed no
signs of metastatic disease.
6. The veteran's residual disability is described as
postsurgical hypothyroidism, which is being treated with
continuous medication and is manifested by subjective
complaints of excess fatigability, weakness, constipation,
palpitations, headache, heat intolerance, and periods of
depression and changes in sleeping patterns with thyroid
function tests within normal limits, and without mental
sluggishness or more than mild symptoms resulting in
occupational or social impairment due to such symptoms as
depressed mood, anxiety, suspiciousness, panic attacks,
chronic sleep impairment, or memory loss.
CONCLUSIONS OF LAW
1. VA's duty to assist in the development of the veteran's
claim and the notification requirements of the Veterans
Claims Assistance Act of 2000 have been satisfied. Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,
§§ 3-4, 114 Stat. 2096, 2096-2099 (2000) (codified as amended
at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107); 66 Fed. Reg.
45,620 (Aug. 29, 2001) (to be codified as amended at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
2. Since the effective date of the 10 percent rating in
March 1997, the criteria for a rating of 100 percent for
status post thyroidectomy due to carcinoma, with anxiety
disorder with depressive features, were met until April 30,
1998. 38 U.S.C.A. § 1155, 5107 (West 1991 & Supp. 2002);
38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.10, 4.119, Diagnostic
Code 7903 (2001).
3. After April 30, 1998, the criteria for a schedular rating
in excess of 10 percent for residuals of thyroidectomy with
anxiety disorder and depressive features were not met.
38 U.S.C.A. § 1155, 5107 (West 1991 & Supp 2002); 38 C.F.R.
§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.119, Diagnostic Code 7903
(2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran contends that his disability from status post
thyroidectomy due to papillary thyroid carcinoma with anxiety
disorder and depressive features has worsened and should be
rated higher than the 10 percent continued by the RO's August
1997 rating decision.
First, the Board has considered the history of the veteran's
thyroid disorder and the rating history. Service medical
records show that a thyroid nodule was detected during the
veteran's medical examination for separation from service.
An ultrasound scan revealed a left lobe nodule. Synthroid
therapy resulted in a slight decrease in the size of the
nodule. A September 1992 VA examination report contains a
diagnosis of a solitary non-functional nodule in the left
lobule of the thyroid.
On this basis, a December 1992 rating decision granted
service connection for hypothyroidism and assigned a
noncompensable disability evaluation, as the veteran had been
found to be essentially symptom free.
In December 1993, the veteran underwent a left thyroid
lobectomy due to papillary thyroid carcinoma. He underwent a
right thyroidectomy in February 1996.
In a September 1996 rating decision, the RO assigned a rating
of 100 percent, effective from the day following the
veteran's separation from service through February 1997, for
status post thyroidectomy due to papillary thyroid carcinoma,
anxiety disorder with depressive features, followed by a 10
percent rating from March 1, 1997. The veteran appealed the
August 1997 rating decision that continued the 10 percent
rating.
The veteran's disability from his thyroid disorder has been
rated by the RO utilizing Diagnostic Codes 9400 and 7914.
Under Diagnostic Code 7914, disability from malignant
neoplasm of a part of the endocrine system is rated 100
percent. A note following Diagnostic Code 7914 provides that
a rating of 100 percent shall continue beyond the cessation
of any surgical, X-ray, antineoplastic chemotherapy or other
therapeutic procedure. Six months after the discontinuance
of such treatment, the appropriate disability rating shall be
determined by a mandatory VA examination. Any change in
evaluation based upon that or any subsequent examination
shall be subject to the provisions of 38 C.F.R. § 3.105(e).
If there has been no local recurrence or metastasis, the
disability is rated based on residuals.
In this case, additional evidence added to the record shows
that, following the right hemithyroidectomy in February 1996,
the veteran was treated with radioactive iodine on April 16,
1996. Moreover, a whole body scan in October 1996 showed
evidence of thyroid carcinoma metastatic to the superior
mediastinum, for which the veteran underwent a second course
of radioiodine therapy, followed by the third - and
apparently final - course on October 24, 1997, when the
veteran underwent radionuclide ablation of his thyroid gland.
Thus, under Diagnostic Code 7914, he would be entitled to 100
percent rating due to the presence of malignant neoplasm in
April 1996 and for at least 6 months after his last treatment
on October 24, 1997.
After April 24, 1998, or 6 months after the cessation of the
radionuclide ablation of the thyroid gland, the veteran
underwent a whole body radiological scan on May 1, 1998. The
scan showed no areas of abnormally increased tracer
deposition to suggest metastatic disease. The examiner
reported that there was no evidence of metastatic thyroid
carcinoma. It does not appear that the veteran has had a
recurrence of cancer, has had metastasis of cancer, or has
undergone surgery, chemotherapy or other therapeutic
procedures for thyroid cancer since October 24, 1997.
Therefore, the Board finds that it is appropriate to rate the
veteran on the residuals of the malignancy beginning May 1,
1998.
The medical evidence concerning the veteran's residual
disability must be viewed in the context of 38 C.F.R.
§ 4.126(d). That regulation provides that when a single
disability has been diagnosed as both a physical condition
and as a mental disorder, the rating agency shall evaluate it
using a diagnostic code which represents the dominant (more
disabling) aspect of the condition.
The Board will first consider the physical aspects of the
residual disability. Under Diagnostic Code 7903, a 10 percent
rating is assigned for hypothyroidism manifested by
fatigability or where continuous medication is required for
control. A 30 percent rating is provided for fatigability,
constipation, and mental sluggishness. A 60 percent rating
is provided for muscular weakness, mental disturbance, and
weight gain. A 100 percent rating is provided for
hypothyroidism with cold intolerance, muscular weakness,
cardiovascular involvement, mental disturbance (dementia,
slowing of thought, depression), bradycardia (less than 60
beats per minute) and sleepiness.
In this case, an outpatient treatment noted dated in
September 1998 shows that the veteran had a history of
hypothyroidism. He had complaints of recurrent headache,
generalized weakness, insomnia, weight gain, hoarseness, and
cold intolerance. These symptoms had persisted despite an
increased dosage of medication for hypothyroidism.
The veteran underwent another VA endocrinology examination in
September 2002. The examiner reviewed the claims folder,
including the veteran's medical records. She noted that the
veteran had continued follow-up treatment at VA clinics and
that he had required multiple adjustments in his medication
due to uncontrolled hypothyroidism. She added that he was
taking Synthroid daily, and that the electronic notes that
she had reviewed showed no evidence of thyroid-related
symptoms on follow-up visits. Nonetheless, the examination
report indicates the veteran had current complaints of
excessive tiredness, weakness, marked heat intolerance,
chronic constipation, hair loss, excessive sleepiness,
excessive perspiration, headache, and occasional
palpitations. He denied hoarseness, dysphagia, and diarrhea.
The examiner noted that a review of treatment records did not
show weight gain. She reported the following diagnoses: 1)
papillary thyroid carcinoma; 2) status post total
thyroidectomy secondary to thyroid carcinoma (left lobe 1993
and right lobe 1996); 3) status post radioiodine therapy
(1992 and 1997); 4) postsurgical hypothyroidism, under
treatment. The examiner expressed an opinion that the
veteran's symptoms were not disabling. His thyroid function
tests were within normal limits.
The Board concludes that the record does not support a rating
in excess of 10 percent for postsurgical hypothyroidism under
Diagnostic Code 7903. Despite the veteran's complaints of
such symptoms as weakness, excessive sleepiness, occasional
palpitations, and weight gain, his subjective complaints are
not born out by objective clinical findings - as the examiner
mentioned. The veteran is taking medication daily for
hypothyroidism; his thyroid function test was normal in
September 2002. The record does not show that he has
thyroid-related mental sluggishness. Nor are there objective
findings of fatigability and constipation. According to the
examiner who conducted the most recent examination, the
veteran does not have disability from his postsurgical
hypothyroid disorder. Therefore, the Board concludes that
the criteria for a rating in excess of 10 percent under
Diagnostic Code 7903 for the period since April 30, 1998,
have not been met.
The Board will next consider the psychiatric aspects of his
residual disability. Under the General Rating Formula for
Mental Disorders, 38 C.F.R. § 4.130, a 10 percent disability
rating is assigned for generalized anxiety disorder with
occupational and social impairment due to mild or transient
symptoms which decrease work efficiency and ability to
perform occupational tasks only during periods of significant
stress, or where symptoms are controlled by continuous
medication.
A 30 percent disability rating is assigned for occupational
and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events).
A 50 percent rating is assigned for occupational and social
impairment with reduced reliability and productivity due to
such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintain effective work and social
relationships.
A 70 percent rating is assigned for occupation and social
impairment with deficiencies in most areas such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately, and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a work-like
setting); or inability to establish and maintain effective
relationships.
A 100 percent rating is assigned for total occupational and
social impairment due to such symptoms as: gross impairment
in thought processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time and place;
memory loss for names of close relatives, one's own
occupation, or own name.
The veteran was afforded a VA psychiatric examination in
September 2002. The examiner noted that the veteran had not
had any psychiatric hospitalizations. The examiner further
noted the diagnosis of anxiety disorder not otherwise
specified, with depressive features that was reported in a VA
examination report dated in October 1995. A diagnosis of
generalized anxiety disorder was reported in a VA examination
report dated in May 1997. The veteran's subjective
complaints included periods of depression and changes in
sleeping patterns. He also complained of weight gain. On
examination the veteran was clean, obese, and adequately
dressed and groomed. He was alert and well oriented. His
mood was anxious. His affect was constricted. He attention,
concentration, and memory were good. His speech was clear
and coherent. He was not hallucinating. He was not suicidal
or homicidal. His insight and judgment were fair. He showed
good impulse control. The diagnosis was mild generalized
anxiety disorder secondary to thyroid condition. On a scale
used to measure overall functioning (GAF), the examiner
assigned a score of 65, indicative of mild symptoms such as
depressed mood and mild insomnia, or some difficulty in
social or occupational functioning, but generally functioning
pretty well, with some meaningful interpersonal
relationships.
Based on this and other neuropsychiatric examination reports
in the claims file, the Board concludes that the veteran
would not be entitled to a rating in excess of 10 percent
based on a mental disorder during the period since May 1,
1998. He has not had psychiatric hospitalizations or
treatment. He has not been given psychotropic medication.
Although he has some symptoms of periodic depression and
disturbances in sleep patterns, he is reported to be
generally functioning well with only mild symptoms which
would affect social or occupational functioning. There is no
evidence indicating that the veteran has symptoms such as
suspiciousness, panic attacks, chronic sleep impairment, or
memory loss. Therefore, the Board concludes that since May
1, 1998, the veteran has not met the criteria for a schedular
rating in excess of 10 percent for a mental disorder
associated with his thyroid disorder.
II. Extraschedular and Other Considerations
The Board has considered the provisions of 38 C.F.R. § 4.7,
which provide for assignment of the next higher evaluation
where the disability picture more closely approximates the
criteria for the next higher evaluations. Where there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned. As
discussed above, the veteran's overall disability picture
does not approximate the criteria for the next higher
schedular evaluation of 30 percent under Diagnostic Code 7903
or the general rating formula for mental disorders.
In exceptional cases where schedular evaluations are found to
be inadequate, consideration of "an extra-schedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability or disabilities" is made. 38 C.F.R.
§ 3.321(b)(1) (2001). The governing norm in these
exceptional cases is a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards. Id.
The Board first notes that the schedular evaluations in this
case are not inadequate. A full range of higher schedular
ratings, up to 100 percent, are assignable pursuant to
Diagnostic Code 7903 and 9400, but the medical evidence
reflects that the manifestations required to warrant such
higher ratings are not present in this case.
Second, the Board finds no evidence of an exceptional
disability picture in this case. The veteran has not
required hospitalization for his residual disability since
April 1998, nor is it otherwise shown that the residual
disability, by itself, has so markedly interfered with
employment as to render impractical the application of
regular schedular standards. Rather, for the reasons noted
above, the Board concludes that the impairment resulting from
residuals of thyroidectomy with anxiety disorder and
depressive features is adequately compensated by the 10
percent schedular evaluation after April 30, 1998.
Therefore, extraschedular consideration under 38 C.F.R.
§ 3.321(b) is not warranted.
III. Applicability of and Compliance with VCAA
There has been a significant change in the law during the
pendency of this appeal with the enactment of the VCAA, Pub.
L. No. 106-475, 114 Stat. 2096 (2000). This law eliminates
the concept of a well-grounded claim, redefines the
obligations of VA with respect to the duty to assist, and
supersedes the decision of the Court in Morton v. West, 12
Vet. App. 477 (1999) (holding that VA cannot assist in the
development of a claim that is not well grounded). The new
law also includes an enhanced duty to notify a claimant as to
the information and evidence necessary to substantiate a
claim for VA benefits. The VCAA was implemented with the
adoption of new regulations. See 66 Fed. Reg. 45,620 (Aug.
29, 2001) (codified as amended at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a) (2002)). However, the
regulations add nothing of substance to the new legislation
and the Board's consideration of the regulations does not
prejudice the appellant. See Bernard v. Brown, 4 Vet. App.
384 (1993).
Generally, the VCAA is applicable to all claims filed on or
after the date of enactment, November 9, 2000, or filed
before the date of enactment and not yet final as of that
date. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat.
2096, 2099 (2000). Under VCAA, VA has the duty to notify a
claimant of the evidence necessary to support the claim, to
assist in the development of claim, and to notify a claimant
of VA's inability to obtain certain evidence. These duties
are discussed in detail below.
VA has a duty to notify the appellant and his representative,
if any, of information and evidence needed to substantiate
and complete a claim. 38 U.S.C.A. §§ 5102, 5103 (West Supp.
2002). In this case the veteran has been so notified by the
August 1997 rating decision and the Statement of the Case and
Supplemental Statement of the Case.
The veteran has been informed of the evidence needed to
substantiate his claim and of the duties that the RO would
undertake to assist him in developing his claim. VA has no
outstanding duty to inform the appellant that any additional
information or evidence is needed. The Board concludes that
VA has complied with the VCAA notification requirements.
Under 38 C.F.R. § 3.159(b) (2002), VA's duty to assist in the
development of claim includes the duty to make as many
requests as necessary to obtain relevant records from a
Federal department or agency, including service medical
records; medical and other records from VA medical
facilities, and records from Federal agencies, such as the
Social Security Administration, as well as private medical
records identified by the veteran. The RO has obtained all
relevant records identified by the veteran or otherwise
evident from the claims folder.
The veteran has not asserted that there are private treatment
records that pertain to his claim. The veteran has had
several opportunities to identify sources of evidence,
including the claim he filed, his Notice of Disagreement, his
substantive appeal, and the statements filed on his behalf by
his representative. The RO has obtained treatment records
identified by the veteran. The veteran has not provided
information concerning additional evidence -- such as the
names of treatment providers, dates of treatment, or
custodians of records, either private, Federal agency, or
service related -- which has not been obtained.
Under 38 C.F.R. § 3.159(c)(4) (2002), VA must provide a
medical examination or obtain a medical opinion in
compensation claims when such an examination or opinion is
necessary to make a decision on the claim. 38 U.S.C.A.
§ 5103A(d)(2) (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.356(a) (2002). The veteran has been
afforded several VA examinations.
In this case, VA has satisfied its duty to notify the veteran
of evidence necessary to substantiate the claim and to assist
the veteran in obtaining records and providing medical
examinations. The revised regulation concerning VA's duty to
notify claimants of inability to obtain records under the
VCAA, 38 C.F.R. § 3.159(e) (2002), are applicable to any
claim for benefits received by VA on or after November 9,
2000, as well as to any claim filed before that date but not
decided by VA as of that date. See 66 Fed. Reg. 45,620 and
45,631-45,632 (Aug. 29, 2001). VA has not been unable to
obtain any records identified by the veteran or otherwise
identified in the claims file. Therefore, VA has no duty to
notify the veteran of inability to obtain evidence.
ORDER
A rating of 100 percent for status post thyroidectomy due to
papillary thyroid carcinoma with anxiety disorder with
depressive features is granted through April 30, 1998,
subject to the controlling regulations applicable to the
payment of monetary benefits.
A rating in excess of 10 percent for status post
thyroidectomy due to papillary thyroid carcinoma with anxiety
disorder with depressive features after April 30, 1998, is
denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.